Employee Social Media Use and Disciplinary Action

February 9, 2021

While social media has been an outlet for individual speech for years, people now rely on it more than ever as a means of staying connected when getting together in person is challenging. Heightened political and social tensions have translated into heightened levels of discourse, with social media platforms like Twitter, Facebook, Instagram, YouTube, and TikTok offering users endless opportunities to share their opinions. On top of that, many workers face the immense challenge of juggling pandemic precautions, homeschooling, elder care, and other responsibilities, requiring them to work in remote arrangements and at unorthodox hours. As this “new normal” blurs the line between personal and professional time, and as our social lives migrate more and more onto social media, employers face a difficult question: How far can they go in restricting their employees’ social media content?

  1. What can an employer do if it discovers social media posts disparaging the company?

An employer must first consider whether the employee is seeking to engage in “concerted activity,” i.e., working together with other employees to address work-related issues such as pay rates, benefits, management or other working conditions. The federal National Labor Relations Act (NLRA) prohibits an employer from interfering with such conduct, and termination or other disciplinary action would constitute interference. If the employee has previously made complaints to management on behalf of a group of employees, sought other employees’ participation in action, or if the post is receiving engagement from other co-workers, the employee may be engaging in concerted activity. For example, an employee who starts a Facebook group with co-workers to foster a conversation about wages, benefits or other working conditions is participating in protected activity.

However, the NLRA will not protect employees who post offensive or false remarks about their employer where such statements are not connected to concerted activity, or who post disparaging comments about protected characteristics, such as race, religion or gender. For example, profanity-charged Facebook rants advocating insubordination will likely not constitute protected activity. Prejudicial and hurtful comments motivated by race, religion, or gender that are separate from concerted activity (picket lines, union meetings, etc.) would not be protected either.

In sum, an employer can terminate an employee for posting about individual gripes, but there can be a fine line between an individual complaint and attempt at concerted activity. Employers should consult with counsel before terminating or disciplining an employee for posting about work-related activity.

  1. What can an employer do if it discovers offensive social media posts, i.e., posts that include discriminatory statements, controversial opinions, or other comments with which the employer does not want to be affiliated?

An employee who is “at-will” can be terminated at any time for any legal reason. Further, if a company has a well-crafted social media policy that sets expectations for employee conduct, an at-will employee can be fired or disciplined for violating that policy.

However, employers who monitor their employees’ social media accounts must bear in mind that they can be held accountable for any information they might learn there about an employee’s protected traits and/or characteristics. For example, if an employee shares an Instagram post about wanting to get pregnant, and the employer uses that information to decide to terminate the employee, the employer would be liable for wrongful termination.

Employers should also take care to understand activities that are legally protected in their jurisdictions, which protections can vary drastically by jurisdiction. As only one example, New Jersey employers should be cognizant of N.J.S.A. § 34:6B-1, which prohibits adverse employment decisions based on whether an employee does or does not use tobacco products.

New York-based employers, in turn, should be cognizant of Section 201-d of the New York Labor Law, which prohibits adverse employment actions based on lawful off-duty conduct, including fund-raising for a political candidate, party, or advocacy group, engaging in recreational activities, and the legal use of consumable products, including tobacco and alcohol. Importantly, this conduct must occur outside of working hours, off of the employer’s premises, and without the use of the employer’s equipment or other property. Further, the law will not protect employees who engage in discriminatory harassment, or whose posts otherwise create a material conflict of interest with the employer’s business interest or violate company policy. If a remotely-working employee posts a TikTok video showing her drinking at home, while taking a work-related conference call, then the conduct would have occurred during working hours and could be used as grounds for an adverse employment decision. However, a company may not, without more, terminate an employee because she posts an Instagram of herself with an “I voted” sticker.

Employers should confer with counsel to make sure the termination of a worker for off-duty conduct does not run afoul of the laws of any applicable jurisdiction.

  1. What, if anything, can an employer do proactively?

The best proactive step is to implement a social media policy. Such a policy can require that employees adhere to other, relevant company policies – such as codes of conduct or anti-discrimination and anti-harassment policies – when posting on social media. Thus, an employee who bullies people via social media or makes racist or sexist remarks could be terminated pursuant to such a policy.

Social media policies can also prohibit employees from speaking on behalf of the company without authorization, and require that employees who are identified as employees of the company specify that their opinions are their own and/or do not reflect the opinions of the company. Such policies can be very helpful for networking-focused social media sites, such as LinkedIn, where the employer’s name appears on most posts, or other social media sites or posts where the employee identifies their employer. Social media policies may also prohibit the use of social media while on the clock and prohibit the use of social media on company devices. Finally, while social media policies can limit the type of employer information that can be shared (such as confidential information), these policies should not be so broad as to prohibit activity protected by the NLRA or other applicable law.

For more information on this issue or other employment matters, please contact:

Carol M. Goodman at +1 212 592 1465 or [email protected]
K. Heather Robinson at +1 973 274 2006 or [email protected]
Meaghan Roe at +1 212 592 1632 or [email protected]
Silvia Stockman at +1 212 592 1583 or [email protected]

© 2021 Herrick, Feinstein LLP. This alert is provided by Herrick, Feinstein LLP to keep its clients and other interested parties informed of current legal developments that may affect or otherwise be of interest to them. The information is not intended as legal advice or legal opinion and should not be construed as such.